IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-41303

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UNITED FOOD AND COMMERCIAL WORKERS UNION AFL-CIO, CLC

DISTRICT LOCAL UNION 540,

Plaintiff-Appellee,

v.

PILGRIM’S PRIDE CORPORATION,

Defendant-Appellant.

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Appeal from the United States District Court

for the Eastern District of Texas, Lufkin Division

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October 15, 1999

Before POLITZ, DeMOSS and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Pilgrim’s Pride Corporation [Pilgrim’s Pride] appeals from

the district court’s enforcement of an arbitration award,

claiming that such enforcement would violate national labor

policy. United Food and Commercial Workers Union AFL-CIO, CLC

District Local Union 540 [Local 540] contends that this Court

does not have jurisdiction over this appeal, that we should

decline to decide the case in deference to the National Labor

Relations Board, and that the award does not violate national

labor policy. Having determined that we have jurisdiction to

hear this appeal, we find that the district court’s enforcement

order does not violate a “well-defined and dominant public

policy”, W.R. Grace & Co. v. International Union of Rubber

Workers, 461 U.S. 757, 766 (1983), and therefore affirm.
2

I. Facts and Procedural History

Pilgrim’s Pride and Local 540 entered into a collective

bargaining agreement [CBA], Article V of which addresses union

dues and provides for a checkoff authorization form which is

attached as an exhibit to the CBA. Employees who sign the form

have their union dues deducted from their paychecks by the

company which in turn pays the collected amount to the union.

The checkoff authorization form is addressed to “Any

Employer under Contract with . . . Local 540,” and states that

the authorization “is not contingent upon my present or future

membership in the Union.” The checkoff form also contains a

portability clause: “The Secretary-Treasurer of Local 540 is

authorized to deposit this authorization with any Employer under

contract with Local 540 and is further authorized to transfer

this authorization to any other Employer under contract with

Local 540 in the event that I should change employment.”

The present dispute arose when certain Pilgrim’s Pride

employees, who had signed the checkoff authorization form, left

employment with the company for various reasons and then were

later rehired. When Local 540 learned of these rehires, it

requested that Pilgrim’s Pride withhold union fees from the

returning employees’ paychecks. Pilgrim’s Pride did so. Some of

those employees objected to the deductions, and Pilgrim’s Pride

ceased withholding union dues from their paychecks. 

Local 540 requested that the company deduct fees from all

employees who had ever signed an authorization during the current
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CBA; Pilgrim’s Pride refused to reinstate withholding of fees for

the objecting employees. Local 540 filed a grievance with the

company, asserting that it was violating Article V (Dues) of the

CBA. Pilgrim’s Pride rejected the grievance.

Pilgrim’s Pride filed a complaint against Local 540 with the

National Labor Relations Board [NLRB], alleging that the union

“restrained and coerced” employees by demanding that fees be

withheld in violation of Section 8(b)(1)(A) and (2) of the

National Labor Relations Act [NLRA], 29 U.S.C. § 151 et seq. 

(Final determination by the NLRB is still pending). Local 540

then filed a complaint in district court seeking to compel

Pilgrim’s Pride into arbitration of the dispute as required under

the CBA. The district court granted the union’s request. 

The arbitrator found for Local 540 and ordered payment of

the union fees that had not been deducted from returning

employees’ paychecks. Pilgrim’s Pride refused to comply with the

award. On Local 540's motion, the district court issued an order

enforcing the arbitrator’s award. That order states: “ORDERED

that the award is hereby enforced. Should the National Labor

Relations Board hereafter enter a final order . . . concluding

that Plaintiff has violated the NLRB or that enforcement of the

award would do so, either party may move for relief from this

Order.” Pilgrim’s Pride appeals from this order enforcing the

arbitration award.

II. Analysis

A. Jurisdiction
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This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 

Local 540 argues that the enforcement order is not final and

appealable because it leaves open the possibility that the

parties could later seek relief from it. However, that the

district court might later modify its order does not diminish its

finality or present effect. See Moses H. Cone Mem’l Hosp. v.

Mercury Constr. Corp., 460 U.S. 1, 12 (1983). The enforcement

order in this case dispositively grants the relief sought by

Local 540, see United States v. Jose, 519 U.S. 54, 56-57 (1996),

and ends the litigation on the merits in the district court. See

Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399,

401 (5th Cir. 1984) (en banc). Orders confirming and executing

arbitration awards are routinely appealable. See, e.g., Federal

Arbitration Act, 9 U.S.C. § 16; F.C. Shaffer & Assocs., Inc. v.

Demech Contractors, Ltd., 101 F.3d 40, 43 (5th Cir. 1996). The

enforcement order in this case disposes of the litigation below. 

It is final and this Court has jurisdiction to hear its appeal.

B. Abstention in favor of the National Labor Relations Board

Local 540 argues that, even if we have jurisdiction, we

should decline to rule in this case because a parallel action is

pending before the NLRB. We disagree.

While the NLRB has primary jurisdiction to decide what

constitutes unfair labor practices under the NLRA, see Kaiser

Steel Corp. v. Mullins, 455 U.S. 72, 83 (1982), it is not the

exclusive tribunal for the adjudication of labor disputes,
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particularly those involving interpretation of a CBA. See Litton

Fin. Printing Div. v. NLRB, 501 U.S. 190, 202 (1991). 

Arbitration is a proper method for resolving disputes under a CBA

even if the same set of facts could relate to an unfair labor

practice charge. See Carey v. Westinghouse Elec. Corp., 375 U.S.

261, 272 (1964). Federal courts have jurisdiction over

arbitration enforcement suits under such circumstances. See

General Warehousemen and Helpers Local 767 v. Standard Brands,

Inc., 579 F.2d 1282, 1289 (5th Cir. 1978) (en banc), cert.

dismissed, 441 U.S. 957 (1979). 

If the NLRB’s decision ultimately conflicts with the

arbitrator’s award, it will govern. See Carey, 375 U.S. at 272. 

That possibility does not prevent us from evaluating the

enforcement of the award in the meantime. We review the

arbitration award for its conformity with the CBA and with

national labor policy as it is currently established. Our review

is not contingent on the NLRB’s ruling in this case. 

C. Conformity with national labor policy

A district court’s confirmation or enforcement of an

arbitration award is reviewed under a de novo standard. See

Gateway Technologies, Inc. v. MCI Telecomm. Corp., 64 F.3d 993,

996 (5th Cir. 1995). Review of an arbitrator’s award itself is

very limited. See Six Flags Over Texas, Inc. v. International

Brotherhood of Electrical Workers, Local 116, 143 F.3d 213, 214-

15 (5th Cir. 1998); Exxon Corp. v. Baton Rouge Oil, 77 F.3d 850,

853 (5th Cir. 1996). The award should be upheld if it “draws its
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essence from the collective bargaining agreement,” United

Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S.

593, 597 (1960), and the arbitrator did not exceed his or her

authority under the CBA. See E.I. DuPont de Nemours & Co. v.

Local 900 of Int’l Chemical Workers Union, 968 F.2d 456 (5th Cir.

1992). A reviewing court may not second guess mere errors of

fact, law, or interpretation of the CBA. See United Paperworkers

Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987). All doubts

regarding sustainability of an award are resolved in favor of the

arbitration process. See Six Flags Over Texas, 143 F.3d at 215.

The very deferential review afforded to arbitration awards

derives from the Steelworkers’ Trilogy (United Steelworkers of

America v. American Mfg. Co., 363 U.S. 564 (1960); United

Steelworkers of America v. Warrior & Gulf Navigation Co., 363

U.S. 574 (1960); United Steelworkers of America v. Enterprise

Wheel and Car Corp., 363 U.S. 593 (1960). The trilogy, and the

cases that follow it, stand for the proposition that industrial

peace is best preserved by supporting collective bargaining

agreements and the arbitration procedures that are an integral

part of them. Intrusive review of arbitration awards by the

courts would undermine the federal policy favoring labor

arbitration. See Steelworkers v. Enterprise Wheel & Car Corp.,

363 U.S. at 596. Such review would destroy the bargained-for

finality of arbitration; the courts therefore “have no business

weighing the merits of the grievance.” Steelworkers v. American

Mfg. Co., 363 U.S. at 568.
 

1The parties do not allege that there was no agreement to

arbitrate, that the dispute did not arise under the CBA or that the

arbitrator engaged in any misconduct. Pilgrim’s Pride does argue

that the arbitrator misinterpreted the checkoff authorization

language in the CBA. The arbitrator’s decision that the form’s

language applied to rehired employees is not reviewable in itself,

however. The arbitrator clearly did not ignore the plain language

of the CBA. See Misco, 484 U.S. at 38. The only means by which

this Court could vacate the enforcement order would be to find that

the award violates a well-defined and dominant public policy. 

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Nevertheless, an exception to this general deference to

arbitration exists for awards that clearly violate “well-defined

and dominant” public policy. See W.R. Grace & Co. v.

International Union of Rubber Workers, 461 U.S. 757, 766 (1983). 

But “well-defined and dominant” public policy, however, cannot be

generally stated or surmised from common sense; a reviewing court

must specifically identify the laws or legal precedent upon which

it bases its determination that the award contravenes public

policy. See Misco, 484 U.S. at 36. Misco teaches us that we are

not to reach out and extend, ad hoc, the public policy exception

unless the enforcement order before us violates established law.

Pilgrim’s Pride focuses its brief on its contention that the

exception recognized in W.R. Grace and delineated in Misco

applied to the award subject of this appeal.1 Specifically, it

argues that the arbitration award violates a national labor

policy against deducting union fees from rehired employees’ pay

without a new authorization form. Pilgrim’s Pride bases this

argument solely on the NLRB ruling and subsequent affirmation

contained in NLRB v. Brotherhood of Ry. Airline & Steamship

Clerks, 498 F.2d 1105 (5th Cir. 1974). 
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In that case, the NLRB ruled that it was an unfair labor

practice for a union to cause an employer “to deduct union dues

from wages pursuant to dues checkoff authorizations given prior

to the severance of employees who were later rehired.” Id. at

1106-07. Unlike the authorization used in the Pilgrim’s Pride

CBA, the authorization in Steamship Clerks did not have a

portability clause: it did not apply to any employer under

contract with the union. The Court in Steamship Clerks held that

“the fundamental basis for the checkoff is the voluntary consent

of an employee.” Id. at 1109. Finding such consent lacking on

the facts before it, the Court upheld the NLRB’s ruling.

The portability clause contained in the authorization used

by Pilgrim’s Pride makes Steamship Clerks inapplicable to the

facts of this case. The language extending the authorization to

“any employer” under contract with the union evinces a measure of

consent on the part of employees signing it to be bound by the

authorization when they are rehired by the same employer. 

This Circuit has invoked the national labor policy exception

in several circumstances, applying the Misco standard. See,

e.g., E.F. Etie Sheet Metal, 1 F.3d at 1475-76; Exxon Corp. v.

Baton Rouge Oil, 77 F.3d 850, 855-56 (5th Cir. 1996); Gulf Coast

Indus. Workers Union v. Exxon Corp., 991 F.2d 244, 248-55 (5th

Cir.), cert. denied, 510 U.S. 965 (1993). In each of those

cases, the dominant and well-defined policy which justified

refusing to enforce an arbitration award was established by

reference to multiple controlling cases, relevant statutes, and
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rulings by the NLRB. 

We do not express an opinion as to the minimum justification

required to establish a dominant and well-defined public policy. 

Nor do we purport to decide whether Local 540 engaged in an

unfair labor practice as a matter of direct interpretation of the

NLRA; that question is currently before the NLRB. We do hold

that Pilgrim’s Pride has not established that the arbitration

award or its enforcement violates a well-defined and dominant

national labor policy by analogizing to a single case that

specifically left open the question before us, i.e. whether a

dues authorization would be enforceable upon rehiring when the

employee has consented to its transfer.

III. Conclusion

This Court has jurisdiction to hear this appeal pursuant to

28 U.S.C. § 1291 and need not abstain from deciding the case out

of deference to the NLRB. The arbitration award in issue was

based on the collective bargaining agreement between the parties

and the arbitrator did not exceed his authority in making his

determination. Since Pilgrim’s Pride has failed to establish

that enforcement of the award operates to violate a dominant and

well-defined national labor policy, it cannot avoid through this

appeal the enforcement of the arbitrator’s award. We AFFIRM the

judgment of the district court enforcing the arbitration award.